Supreme Court releases for June 15, 2018

The Kansas Supreme Court released the following published decisions:

The Supreme Court upheld Thurber's capital murder and aggravated kidnapping convictions for the 2007 abduction and murder of a 19-year-old Cowley County Community College student. A jury convicted Thurber in 2009 and sentenced him to death.

In affirming the convictions, the court postponed ruling on the jury's death sentence. The court explained that the district court must reconsider Thurber's claim that he is intellectually disabled using current legal standards. The court noted federal caselaw and state statute prohibit executing a person with an intellectual disability, and explained that the criteria for deciding intellectual disability claims in death penalty cases expanded since Thurber's trial. Adding to this "conundrum" about what law should apply, the court referred to a 2016 state statute revising the criteria and requiring that it apply retroactively.

"We feel compelled to point out the problems we identify on the intellectual disability determination were not of the district court's making," wrote Justice Dan Biles for the court. "That court was operating under now outdated state statutes and federal caselaw."

Biles said the court had no choice but to have the district court reconsider its intellectual disability ruling because new rules for conducting criminal prosecutions typically apply to cases pending on direct review, such as Thurber's. The court said it would retain jurisdiction over Thurber's death sentence appeal pending the outcome on remand.

Justice Eric Rosen dissented, arguing the changes in law applicable to Thurber's intellectual disability claim do not require a new district court ruling on the issue.

Justice Lee A. Johnson also dissented. He argued there were several guilt-phase errors in addition to those found by the court's majority. He argued a new district court ruling on intellectual disability is unnecessary because the death penalty cannot be applied to Thurber under the Kansas Constitution Bill of Rights and due to the problems with the intellectual disability statutes. And he argued that, in making the new ruling, the district court should not be limited to determining whether Thurber was intellectually disabled at the time he first made the claim.

A Sedgwick County jury convicted Jarmon of one count of burglary after he was found in a Wichita warehouse without permission to be there. Warehouse property was missing, and other warehouse property was found on his person. On appeal, the Court of Appeals affirmed the conviction but reversed on a peripheral question of the effectiveness of trial counsel. The Court of Appeals remanded the case to the Sedgwick County District Court for a hearing on possible conflicts of interest between Jarmon and his trial counsel The Supreme Court granted both Jarmon's and the State's petitions for review. Justice Eric Rosen, writing for a unanimous court, affirmed the Court of Appeals decision affirming the conviction but reversed the Court of Appeals order to remand. Jarmon argued that the trial court committed reversible error when it failed to include a definition of theft in the jury instructions for burglary. The court agreed that the omission was error, but it deemed the error harmless because the evidence was overwhelming and uncontested that Jarmon intended to permanently deprive the warehouse owners of their property. The court next relied on recent decisions to determine that the trial court conducted an adequate examination of the asserted conflict between Jarmon and his appointed counsel. Because Jarmon's motion for new trial based on ineffective assistance of counsel was filed out of time, it was properly considered a motion under K.S.A. 60-1507, but the Court of Appeals erroneously extended greater procedural protections than are ordinarily required for such motions. The remand was therefore reversed.

Before 2014 legislative amendments, Kansas elementary and secondary school teachers who had served a statutorily defined period of years were entitled to notice setting out the reasons for their termination or nonrenewal. These teachers also had a right to request a due process hearing. Legislative amendments in 2014 removed these protections for elementary and secondary school teachers. Scriber and McNemee's contracts were nonrenewed in May 2015 without the statutory protections both were entitled to before the 2014 amendments. The teachers challenged the 2014 amendments, arguing the amendments violated the teachers' constitutional right to due process and caused a breach of their contracts. The Supreme Court rejected the teachers' arguments, concluding the legislative process generally provides all the process that is due when the legislation results in the complete or partial deprivation of a protected property interests of more than a few individuals. The court also rejected the teachers' contract argument because it concluded the teachers could not assert rights under the pre-2014 statute.

The Supreme Court ordered the disbarment of Wichita attorney Russell W. Davisson for three disciplinary complaints for lack of diligence in handling bankruptcy and probate proceedings. Davisson also failed to cooperate during the disciplinary investigation, did not appear at his hearing on the complaints, and did not appear before the court when it considered a disciplinary panel's recommendation for his disbarment. Davisson was admitted to practice law in Kansas in 1975. The court's disbarment order noted he was previously disciplined in 1987 and 1988 for neglecting legal matters entrusted to him, and was placed on two years' probation in 1998 for similar offenses.